Arizona Criminal Defense Attorney Blog

Why Disorderly Conduct Charges are often challenged and dismissed

"Disorderly Conduct" is also known as "Disturbing the Peace". There are a number of offenses under Arizona Criminal Code A.R.S. 13-2904 that fall within the classification of Disorderly Conduct. These are among the most successfully challenged criminal offenses due to their vague and sometimes biased nature.

By law the police must have "probable cause" to make an arrest. And although they may feel that the arrests meet the standards for probable cause that a crime occurred, the charges are often disputed and unjustified. For example, police often issue charges of Disorderly Conduct when they are annoyed with a person, and no other criminal charges apply to their conduct.

Disorderly Conduct charges are often seen coupled with other criminal charges such as domestic disputes or domestic violence, assault, resisting arrest, and other serious felony criminal offenses.

Under A.R.S. 13-2904 in Arizona, a person may be guilty of disorderly conduct if they intentionally and with knowledge disturb the peace of a neighborhood, business, person, gathering, meeting, or procession. Behaviors that fall within this code include but are not limited to fighting; serious, violent or disruptive behavior; public belligerence; unreasonably loud noise music, or laughter; use of abusive or offensive language; use of offensive gestures to anyone present that will likely provoke immediate physical retaliation; refusal to obey a civil or lawful order to evacuate or disperse issued to maintain public safety in emergency; or reckless handling, display or discharge of a gun or deadly weapon.

Criminal defenses include but are not limited to violations of constitutional rights including right to free speech, and gathering peacefully; insufficient evidence; lack of eye witnesses, lack of biased witnesses; or conflicting witness testimony; justification defenses; and failure of the prosecution to prove beyond a reasonable doubt that a criminal offense occurred.

Most are charged as Class 1 Misdemeanor in Tempe AZ call for 30 days in jail if convicted. If the behavior involves reckless handling, display or discharge of a gun or other deadly weapon, they are charged as Class 6 Felonies. All felonies in Arizona expose a person to prison terms sentencing and other harsh penalties. Other penalties include fines, fees, assessments, costs, probation, community service, and court ordered anger management counseling.

You should always consult a criminal defense attorney if you face disorderly conduct charges in Arizona, to discuss your options for defense. Defenses may apply that can be used to challenge due to lack of evidence, and justification. But your chances of a dismissal increase substantially if you are represented by a qualified criminal defense attorney.

Additional Resources:

• Tempe Police Investigations Unit

• Disorderly Conduct in Arizona

• Arizona Revised Statutes

• Arizona Sentencing Chart 2012 - 2013

• Tempe Municipal Court

Continue reading "Defenses for Disorderly Conduct Charges in Arizona" »

The Mayor of Phoenix AZ recently announced plans for the largest Gun Buyback Program to be held in May 2013. It is being funded by an anonymous donation of $100,000.00.

A Gun Buyback Program is an organized jurisdictional effort to compensate gun owners in return for their guns. The goal is to take unwanted guns off the street so that they are not a threat to police officers or residents of the communities.

Here are some facts that have been released about the program:

• It will be conducted every Saturday in May, excluding Memorial Day weekend;

• Sessions will be held in various different parts of Phoenix in church parking lots or other trusted locations;
.
• Anyone can drop off a weapon anonymously. City officials announced that no questions will be asked regarding the source of the firearm or it's possessor;

• The owner will receive an unknown amount to be determined at a later date for the weapon;

• The Phoenix Police will check to see if the firearm was stolen. If so, it will be returned to the rightful owner;

• If the weapon was used in a criminal offense, it will be retained by police to be used an investigation.

• All other firearms will be taken out of circulation.

More details will be released as May approaches. For more information a person can contact *Arizonans for Gun Safety at 602-547-0976.

Criminal Defense Attorney Phoenix AZ

Gun offenses are very serious crimes in Arizona. Convictions under A.R.S. 13-3102 Arizona criminal code call for harsh penalties, many of which are felonies. All firearms used in the course of conducting or fleeing from a crime are felonies, and call for aggravated sentencing of the initial crime. Felony convictions call for a minimum sentence of 1 year in prison, and loss of the right to possess a gun, and classify the person as a Prohibited Possessor under the Arizona gun laws.

If you have been arrested for any weapons crimes under Arizona you should always consult a criminal defense attorney before pleading guilty to charges. If retained, they will protect your rights, defend your charges, and make every effort to get a good outcome in your case. There may be constitutional rights that were violated, or other defenses that may be used to resolve the matter favorably on your behalf.

*The Law Office of James Novak is a criminal defense firm serving clients in the Phoenix area. It has no affiliation with Arizonans for Gun Safety or the Phoenix Police Department.

Additional Resources:

• Phoenix Buyback Program

• Arizona Gun Laws

• Arizona sentencing for serious, violent or aggravated offenses

• Phoenix Police Department

• Phoenix Superior Court

Continue reading "Phoenix to Conduct Largest Gun Buyback Program in City's History " »

The correct way to confront your accuser as afforded under the 6th Amendment of the US Constitution.

Your Legal Rights to Confront Your Accuser or Witness

A defendant has many rights under the State and US Constitution. The 6th Amendment of the US Constitution affords the accused of the right to confront their accuser or witnesses against them.

Under the Arizona State Law A.R.S. 13-114 (3) a person is afforded the right to confront witnesses against them, in a criminal case, as prescribed by law.

It should go without saying, that this does not mean a person has right to physically or directly confront a person, outside of the criminal justice process. It means that a defendant has a right to confront witness against them as part of legal proceedings. This is the most commonly and effectively done through cross-examination of a witness in trial, through the defendant's criminal defense attorney. It involves questioning the witness regarding their testimony.

If these rights are violated, it may lead to suppression of the eyewitness identification or testimony. Violation of this right may lead to suppression of the witness testimony being used as evidence against a defendant.

Challenges to Witness Testimony

The Six Amendment also protects a defendant from being found guilty of a crime, based on "hear say" testimony. Some questions regarding admittance of evidence for example "here say" testimony, the parties may negotiate or decide the matters during evidentiary hearings, or conferences. If the Prosecution and Defense are in disagreement regarding the validity of a particular witness testimony, the judge may rule on whether or not it may be admitted.

Other factors may invalidate a witness statement or prove them less than accurate, before or during trial. Validity of a testimony may be compromised due to such external factors including: influences by other people; obstruction of a witnesses view; length of time that has elapsed since the incident and the testimony; confusion; reduction of recollection of the incident by the witness; unbiased nature of the witness; lack of proper lighting to see the witness; inattention of the witness during the incident, distractions or noise surrounding the witness; stress and other circumstances. In these cases, the defense lawyer may file a motion to suppress that the invalid testimony or identification, from being admitted so that it may not be used against the defendant.

Nonetheless, other material evidence should be always be used to increase the validity of witness identification or testimony. Material evidence may include such things as photographs, surveillance video, fingerprints and DNA comparisons.

Burden of Proof

In absence of a "guilty" plea or conviction, a defendant is guilty until proven otherwise by a court of law. In order to get a conviction, the State of Arizona and Prosecution must prove "beyond a reasonable doubt" that a defendant is guilty of committing a crime.

If the prosecution wishes to use a witness statement or identification against the defendant, their defense attorney will usually examine this identification or testimony to confirm its validity. If the witness identification or testimony raises reasonable doubt due to invalidity, it may lead to suppression of this evidence, and in some cases, a dismissal of charges.

Criminal Attorney for defense of criminal charges in Mesa AZ

Any criminal charges in Arizona can potentially be serious. You should always consult a qualified criminal defense attorney before pleading guilty to any criminal offense. Although you may have been arrested, you are still presumed innocent by law. You have the right to hire a lawyer to defend your charges. If retained, they will protect your rights; make sure you are treated fairly, and defend the charges against you. This will increase your chances of getting a favorable resolution in your case.

Additional Resources:

• The 6th Amendment of the Constitution

• Arizona State Legislature - Right to Witness Confrontation

• Arizona State Legislature - Presumption of Innocence

• Arizona Rules of Evidence - Recent Amendments

• Mesa AZ Municipal Court

Continue reading "Rights to Confront Your Accuser in Criminal Charges" »

Disorderly Conduct also known as "disturbing the peace", is one of the most common criminal offenses. In 2011, police made 17,537 arrests for this offense in Arizona, making it the 4th most common offense in the state.

Most are charged as Class 1 Misdemeanors, which carries a jail sentence. But depending on the circumstances, may be charged as Class 1 felony which exposes a person to harsh prison sentencing.

Disorderly Conduct laws cover a wide range of criminal conduct, which many perceive it as a "catch-all" offense. Others consider it a last resort charge, in those cases where police are annoyed with a person, and have no other applicable charges for which to cite a person. It is often coupled with other offenses such as assault, domestic violence, unlawful discharge of a gun, or resisting arrest.

Disorderly Conduct charges are often vague in nature, making it one of the most challenged criminal offenses in court. Often the suspect was acting within the order of their Constitutional Rights. They are often dismissed for the following reasons:

• Insufficient evidence;
• Lack of consistent credible witness statements;
• Violations in Constitutional Rights;
• Affirmative or Justifiable Defenses were successfully argued.
• Inability of the prosecution to "prove beyond reasonable doubt" that the crime was committed.

A.R.S. 13-2904 Disorderly Conduct Laws

A person is guilty of Disorderly Conduct, if, with intent to disturb the peace and quiet of a neighborhood, person, family, or business, other public or place, with knowledge of doing so commits the following:

1) Engages in fighting, violence or seriously disruptive behavior; and includes public drunkenness resulting in disorderly behavior;
2) Makes unreasonable and disruptive noise; or
3) Uses abusive or offensive language or gestures to against another that is likely to provoke immediate physical retaliation by that person; or
4) Makes commotion of long duration; verbal or physical display with the intent to prevent transactions of a business, lawful gathering, meeting, or procession; or
5) Refusing to comply with a lawful order to disperse for any of the following purposes:

• To maintain public safety;
• If they are within the dangerous proximity to a fire, or other hazard;
• Any other emergency as deemed necessary by civil local, or state officials, or criminal law enforcement entities.

These offenses will be charged as Class 1 Misdemeanors, and expose a person to jail, and other penalties.

A person will also be guilty of Disorderly Conduct if with intent and knowledge, displays or discharges a firearm, other deadly weapon, or dangerous instrument. This offense will be charged as a Class 6 Felony, exposing a defendant to prison, and other harsh penalties.

Criminal Defense Attorney for Disorderly Conduct in Tempe, AZ

Disorderly Conduct charges are not always justified, are often vague in nature. For these reasons criminal defense attorneys can often get them dismissed. You should never plead guilty before consulting an experienced criminal lawyer about your matter. If retained they will evaluate your case and determine what defenses may be used based on your circumstances. They will tell your side of the story; protect your rights; defend your charges; and work to get you the best possible outcome in your case.

Additional Resources:

• Disorderly Conduct Laws

• Arizona Department of Public Safety - Crime Statistics 2011

• Tempe Police Department - Resources

• Tempe City Court

Continue reading "Disorderly Conduct Charges: Why they are often challenged and dismissed " »

The Verdict could have national impact on when law enforcement can collect DNA evidence from suspects.

On November 9, 2012, the United States Supreme Court agreed to hear a criminal DNA testing case, Maryland v. King (12-207), which could result in nation-wide impacts. The defendant's DNA samples were collected immediately following his arrest. He was subsequently convicted of rape. King's Attorney attempted to suppress the DNA evidence, on the grounds that it was taken unconstitutionally. The Maryland Court of Appeals agreed, and overturned King's conviction. They ruled that suspects under arrest but not convicted, have more rights than convicted felons; and that DNA testing was more invasive than standard finger print evidence.

The State of Maryland disagreed, and appealed to the US Supreme Court to hear the case. The case is expected to be heard by the high court in June 2013.

DNA testing has been the subject of much controversy. Objection to the DNA testing of non-convicted suspects is that it is in violation of a person's 4th Amendment Constitutional Right against unlawful search and seizures.

All states currently use DNA testing as an admissible investigative tool. Currently it is lawful in most states, including Arizona, to collect report and distribute DNA results for convicted felons. However, not all states allow collection, analysis, reporting, distributing, and use of DNA testing as evidence against first time criminal offenders, with no felony convictions.

DNA Testing Laws in Arizona

Arizona allows collection, reporting and distribution of DNA evidence from prison inmates and convicted felons. Criminal DNA samples are maintained by in a forensic data base by authorized Law enforcement agencies, and indexed by the FBI.

However, in recent years, Arizona also passed legislation allowing DNA to be collected from suspects who were arrested, but not convicted of a felony in specific situations.
Under Arizona Law A.R.S. 13-610 DNA may be collected from a suspect if they were arrested for serious, violent, and dangerous felony offenses on involving a victim.

The law allows for DNA testing in situations where the suspect was arrested for a criminal offense specified by law, even if they were not convicted of the crime. Examples of these offenses include but are not limited to sexual offenses and assault; burglary in the first or second degree; homicide; and other dangerous offenses involving victims.

Criminal Defense for Charges involving DNA cases

Anyone arrested for a serious or dangerous crime, should always consult a criminal defense attorney before pleading guilty. Felony convictions for these types of crimes, will result in years to life in prison, or even expose a defendant to the death penalty. A defendant should always invoke their right to retain qualified legal representation to defend their rights and charges. If DNA evidence was collected unlawfully it may lead to suppression of the evidence in favor of the defendant. If DNA evidence does not lead to a match of the suspect arrested, the charges may be dismissed or lead to a "not-guilty" verdict in a jury trial. The lawfulness or validity of DNA evidence should always be argued by a qualified criminal defense attorney.

Additional Resources:

• Arizona State Legislature

• Arizona State Bar - Jury Instructions for Evidence

• United States Supreme Court - Maryland v. King

• US Supreme Court Orders - Petition Granted Maryland V. King, Alonzo J. (12-207)

Continue reading " The US Supreme Court to Hear Landmark DNA Evidence Case " »

"Request made 'unknowingly'; defendant lacked ability to adequately mount a defense" - says Judge

On October 9, 2012, the Superior Court Judge in Maricopa County denied Michael Lee Crane's request to represent himself at trial. Crane is accused three violent robberies and homicides in the Phoenix, AZ.

The defendant claimed the reason he wanted to represent himself was because no one knew his case better than he did. But the reason for the Judge's denial had little to do with knowledge of the case.

But rather, Crane had persistently been disruptive; refused follow or recognize governing authority and law; refused to answer questions; refused to follow substantiated law; refused to comply with the Arizona Rules of Criminal Procedure and Code; and deliberate engaged in serious and obstructionist misconduct

The Judge explained that Crane needed to be able to understand, and follow these rules and follow the Arizona and US constitution. The Judge explained that by not knowing and following these laws and procedures, the defendant did not realize the limits he would place on his defense. But more importantly, his request was denied on the basis that the request for self-representation was not "knowingly" made.

Analysis of Ruling

The Sixth Amendment of the constitution affords a person the right to counsel or the right to defend themselves. And while it is unwise, the court must respect a person's right to refuse attorney representation, even if it to the detriment of the person's defense. For this reason, the Judge did take the defendant's request under advisement. However, the decision is still ultimately at the judge's discretion.

In this Ruling the Judge recognized the right of a person to defend themselves and refuse counsel. However, he explained that this right has limits. The court cited numerous important rulings to refuse to the defendant his request for self-representation:

• A defendant who is persistently disruptive of orderly procedures may lose their right to self-representation U.S. v. Williams 2011; State v Brooks 1989; Smith v State 1998; Wilson v. state 2004; Coleman v. State, 1980;

• Repeatedly arguing with the court on issues that were already ruled on, may be cause for forfeiture of the right to self-representation State v. Hemenway, 2004;

• Self-representation must be balanced against the government's right to a fair trial which requires it to be conducted in a judicious and orderly forum State v. Henry, 1997;

• A trial court has broad discretion in managing the conduct of a trial, and has a duty to properly exercise that discretion State v. Cornell, 1994;

• Even if found competent to waive counsel, and stand trial, the court still has discretion to deny self-representation requests if it believes that the defendant's request was not made knowingly.

Criminal Defense Attorney Mesa, AZ

If you face criminal charges, especially if they are serious, you should always consider retaining a qualified criminal defense attorney to represent you. They will defend your charges, and make sure your rights are protected. They will represent you through all stages of a criminal case; be capable of mounting a defense on your behalf; and worked towards obtaining the best possible resolution to your charges.

Additional Resources:

• State of Arizona v. Michael Crane

• Arizona Judicial Branch - Rules of Criminal Procedure

• Arizona Superior Court - Case Procedures

Continue reading "Judge denies murder suspect's request to represent himself at trial" »

October 2012 marks the 25th anniversary of the observance of National Domestic Violence Awareness Month. Every nine seconds a woman in the United States is beaten. Three women a day in the USA lose their lives. But victims are not limited to women. Victims can be men, children, brothers, sisters, grandparents, or other familial relationship.

The observance was founded by the National Coalition against Domestic Violence. Its goal is to reach out to victims throughout the nation to protect victims, raise awareness, and help end domestic violence.

A wide range of services and activities focused on education, support, and prevention at local, state and national levels. It includes the mourning of those who died as a result of domestic violence, and provides services and support efforts to their surviving children

Identifying Abusive Behaviors

• Controlling behavior;
• Physical abuse;
• Threat or intimidation;
• Isolation;
• Mental or physical neglect;
• Economic abuse or neglect;
• Sexual abuse

Planning for Safety

• Don't allow yourself to be cornered in a room especially a small enclosed area;
• Educate yourself and your children to identify signs and indicators from your abuser that abuse is imminent;
• Discuss safety with your children before any incidents occur including safe places to go, what numbers to call, and safety signals to alert them to act if anything happens;
• Set up emergency signals with a trusted family member or neighbor who lives outside your home;
• Collect important documents, and records that you can access immediately from a safe location on short notice;
• Pack and keep a bag in a safe place that includes clothing, nonperishables, medicines, water, and any needed supplies for you and your children for at least 24 hours;
• Be familiar with local domestic violence shelters in your area, and keep their contact information readily available in the event of emergency.

Local and national supporters are wearing purple ribbons, and conducing "going purple activities". For activities in your area, you can visit your state's Domestic Violence Coalition, official city police website or other national resources.

Domestic Violence Charges

Domestic abuse or violence is a criminal offense, punishable by jail, fines, and counseling. You should know that even victims sometimes are charged or arrested for domestic violence. There are a numerous reasons for this. It can occur if a parent is a witness to domestic abuse or neglect to a child, but does not take any action to report it to authorities or respond appropriately to keep the child safe. It can also occur, if the police arrive, and are uncertain of which person is the aggressor and which is the victim; or if both persons contributed to the incident of aggression, violence, abuse, or neglect.

If you received charges or were arrested, you always consult a criminal defense attorney regarding your matter, before pleading guilty to charges, or appearing in court.

Additional Domestic Violence Support Resources:

• National Coalition Against Domestic Violence

• Other US Organizations for Domestic Violence Support

• Arizona Coalition Against Domestic Violence

• State Coalition Contact List

Continue reading "October - National Domestic Violence Awareness Month " »

Establishing driver impairment is the most challenging element of a DUI

Elements of a DUI

There are three elements of a DUI charge in Arizona. Establishing impairment is the third, and most difficult to confirm. First, the facts need to establish that the motorist must be driving or in actual physical control of a vehicle. Second, the police must determine if a motorist is under the influence of alcohol or drugs. Third, the police must establish that a person's ability to drive was "Impaired to the slightest degree" or more as a result of drugs, alcohol or any combination of drugs and alcohol.

Driving "Impairment" Defined

The Arizona Department of Public Safety defines a "driver impairment" resulting from being under the influence of drugs or alcohol as:

"A reduction in the performance of critical driving tasks"

To determine if the motorist is experiencing a reduction of performance, the police are required to follow certain procedures and protocol. The officer will need to have "probable cause" to believe the driver is impaired due to drugs or alcohol.

Determining Driver Impairment

Determining an impairment of a driver is less fact oriented and less objective than determining their Blood Alcohol Content (BAC) level. BAC levels can be obtained through use of a breathalyzer test or a chemical test such as DUI blood test.

Here are some tools the police will use to determine if a driver is impaired:

1. The motorist driving behaviors prior to the stop;
2. Police observations of the motorist at the time of, and following the stop;
3. Mannerisms and responses of the motorist to questions asked by the officer;
4. Ability of the motorist to follow instructions;
5. Statements or admittance made by motorist to police;
6. Passenger or objective witness statements;
7. DUI Roadside Standard Field Sobriety Tests (SFSTs) developed by NHTSA:
a. Horizontal Gaze Nystagmus (HGN) Eye Test
b. On-Leg Stand Test;
c. Walk-and-Turn Test

These factors, particularly the DUI Roadside Testing FSTs are often challenged; considered biased and police opinionated, by the defense. This is because the police explain the test; provide instructions; administer the tests, and then grade the tests.

Arizona DUI Laws

Under Arizona law A.R.S. §28.1381, a motorist may be arrested for DUI, if they are driving below the legal limit of 0.08% Blood Alcohol Content (BAC); or if they are under the influence of drugs, and are "impaired to the slightest degree". Criminal Charges will be brought as a Class 1 Misdemeanor.

Criminal Defense Firm for DUI charges Tempe AZ

You should always consult a criminal defense attorney if you were arrested for any type of DUI charges. The penalties are harsh for convictions, even for firs time Drug DUI and DUI "Impaired to the slightest degree". Sentencing is the same as those for DUI in excess of the legal limit of 0.08% BAC, but before 0.15%. Penalties include jail term of 10 days; driver's license suspension for 90 days; use of Ignition Interlock Device (IID) on their vehicles; alcohol or drug screening and education; probation; fines, fees, and assessment costs. You will need a qualified and experienced legal advocate to defend your charges, make sure your rights are protected, and work to resolve the charges with a favorable outcome.

Additional Resources:

• Arizona Department of Public Safety

• Arizona State Legislature - Revised Statutes

• Maricopa County Superior Court - Criminal Case Information

Continue reading "Establishing Driver "Impairment" in DUI Cases " »

Much controversy still surrounds the Arizona Medical Marijuana Act, even though the state law approved use for medicinal by qualified card-holders. Users driving who are patients that possess a medical marijuana card arrest for both possession, and Drug DUI.

Marijuana Possession Charges

Under current law qualified patients of the MM cards may purchase 2.5 ounces of Marijuana every two weeks. However, despite the fact that a person may be a qualified MM card holder they risk arrest for illegal drug possession. Some County prosecutors are not recognizing its' medicinal legality. This is because they feel it conflicts with Federal laws which prohibit the use of it for any reason. Some Maricopa County prosecutors have vowed to prosecute these charges. They will likely be convicted in lower court, and then be compelled to appeal a possession conviction to a higher court, until a ruling can be ordered by the Court of Appeals or the Arizona Supreme Court.

Drug DUI charges

Possession of a legal MM card will not prevent a motorist from getting a Drug DUI. The effects of Marijuana can stay in a person's system for days, weeks, and even months depending on how much and often they use it. So if a driver tests positive for Marijuana following a DUI stop, they may be arrested even if the Marijuana did not cause their driving to be impaired to the slightest degree.

If in fact, the driver was not impaired to the slightest degree due to the Marijuana found in their system, they will have a justifiable defense against the DUI drug charges under Arizona Law.

Arizona Drug DUI Laws

Under Arizona Drug DUI law A.R.S. 28-1381 it is unlawful for a person to drive or be in actual physical control of a vehicle if they are:

• Under the influence of any drugs or alcohol; and
• Impaired to the slightest degree;
• While there is any drug defined in section A.R.S. 13-3401 or its metabolite in the person's system

The law specifies that it is not a defense that a defendant was entitled to use the drug under Arizona Law. This will be charged as a Class 1 Misdemeanor.

Criminal Defense Attorney for Drug DUI and Possession Mesa, AZ

It is important that you consult an experienced criminal attorney to discuss your matter and options for defense following an arrest. You should never plead guilty to charges without first discussing the matter with your legal counsel or without their legal representation. The Arizona laws are very strict and the penalties are harsh. Sentencing includes jail time; fines; fees; drug or alcohol counseling and treatment; suspension of driver's license; use of interlock device on vehicle; probation, and other penalties ordered by the court. Defenses should be argued by a qualified criminal attorney under Arizona Rules of criminal procedure through proper court channels. Successful challenges may lead to evidence suppression, charge dismissal or other favorable outcome in your case.

Additional Resources:

• Arizona Department of Health Services

• Arizona Legislature Revised Statutes

• Maricopa County Superior Drug Court

Continue reading "Marijuana DUI Laws: Users Driving with Medical Marijuana risk being arrested for illegal drug possession and drug DUI. " »

On September 18, 2012, U.S. District Judge Susan Bolton released the temporary restraining order on the immigration provision in SB 1070 A.R.S. 11-1051 (B). The action was pursuant to the U.S. Supreme Court's ruling on the matter in June 2012.

At the center of a two year legal batter, is the provision in the law known as "Show me your papers", and was the most controversial of Arizona's SB1070. Under this provision a police stop must still be a lawful one. In other words, the "reasonable suspicion" that a violation of the law occurred in order to make a legal stop.

During the stop, the officer determines that there is reasonable suspicion that a person is unlawfully in the United States. If reasonable suspicion exists that the person may be in the country illegally, the officer must make a reasonable attempt to contact the USB Immigration and Customs Enforcement (ICE) Agency to confirm the immigration status of the detainee.

The law also requires police to verify immigration status of arrested or imprisoned persons prior to their release.

Lawful Documentation of US Residency

Under SB 1070 A.R.S. 11-1051 (B) a person is presumed to be in the United States legally if they can provide the following documentation:

• Valid Arizona Driver's License;

• Valid Arizona Nonoperation ID License;

• Valid Tribal Enrollment cared or alternative Tribal ID;

• Valid US Federal, State, or Local Government issued ID, if the entity requires proof of legal presence to issue any of the above documents.

U.S. Presidential Executive Order Amnesty Exceptions

There are exceptions to the rules, including those afforded under the U.S. President's Executive Order Decree on June15, 2012, which was also effective immediately. Eligible applicants will receive deferred action for a period of two years, subject to renewal, and will be eligible to apply for a work or school permit to reside in the United States.

This applies to otherwise illegal immigrants. The US Department of Homeland Security (DHS) began accepting applications for "Deferred Actions" for the following persons:

• Those brought to the US before the age of 16; and

• Those who are under the age of 31; and

• Who have lived in the USA continuously from June 15, 2007 to June 15, 2012;

• Currently enrolled and attending school; or

• Graduated or obtained a certificate of completion from high school; or

• Earned a General Education Development (GED) Certificate; or

• An honorably discharged veteran of the US Coast Guard or US armed forces; or

• Have not been convicted of a felony; serious misdemeanor; three or more other misdemeanors; and

• They do not pose a threat to national security or public safety.

The immigration laws in Arizona and on a Federal level continue to change and face legal challenges. Police spokespersons extended their intent to "Treat all individuals with dignity and respect, which is the ethical foundation of policing". We will continue to follow up on changing legislation.

• US Citizenship and Immigration Services

• SB 1070 Arizona Legislature

Continue reading "Arizona's "Show me your papers" immigration provision starts now" »

Arizona police are allowed to use some force if necessary. But only to the degree that is necessary to prevent a suspect from fleeing; or to avoid harm, or injury to others.

Police are not allowed to use excessive physical or lethal force. The justifiable amount of force that can be used is dictated by given set of circumstances.

Although there is no known precise definitions, below low are some situations that would fall within the meaning of police brutality or use of excessive force:

• Physical force against a person who is already in custody; in hand cuffs; restrained or housed by police;

• Physical force against a person or their property if they are not resisting arrest;

• Physical force used by police such as punching, kicking, choking, slamming, or throwing a person down or against a fixed object such as a wall or vehicle, if the suspect is passive or non-violent;

• Improper use of Police Dogs that cause harm to a suspect;

• Use of a weapon including: gun; baton, tear gas, toxic spray; Taser; or dangerous weapon; against an unarmed individual, and for which it can be reasonably presumed that they do not possess a weapon;

• Use of Taser or other weapon against a non-violent and non-threatening individual;

• Threatening or Intimidating a suspect in order to obtain a statement or confession;

• Violent force or suppression of a peaceful activist or protestor;

• Failure of a Police officer to intervene or stop another officer who is using excessive force;
• Carelessly causing death

Laws that Protect against Police Brutality or use of "Excessive Force"

Rights that protect a person from police brutality and use of excessive force originate from the US Constitution and State Constitution.

I. Federal Laws

• US Constitution Amendment IV - Freedom from unlawful search of person or property and seizures;
• US Constitution Amendment V - Freedom from: self-incrimination; deprivation of life, liberty, or property absent due process;
• US Constitution Amendment VIII - Rights against cruel and unusual punishments
• US Constitution Amendment XIV - Freedom from: states to deny the privileges and/or immunities of citizens of the United States; deprivation of life, liberty, or property, absent due process; denial of persons within its jurisdiction equal protection of the laws.

II. Arizona State Laws

• Article 6 - Right to due process under law;
• Article 6.1 - Right to petition and assemble;
• Article 7 - Freedom of speech and press;
• Article 8 - Right to privacy;
• Article 12- Freedom from self-incrimination;
• Article 14 -Freedom of religion;
• Article 15 - Equal privileges and immunities
• Article 16 - Habeas corpus
• Article 17 - Freedom from cruel and unusual punishment;
• Article 30 - Trial by jury; Rights of accused in criminal prosecution; fair and equal treatment with freedom from discrimination

Your rights if excessive force is used

If the level of force used by police was not justified, then it is a violation of your constitutional rights. If right have been violated, your defense attorney may file a motion to suppress any evidence obtained after the rights violation. This leads to dismissal of the criminal charges.

You chances of getting evidence suppressed or criminal charges dismissed will increase if you have qualified legal representation of a criminal defense attorney. .
Civil laws exist that enable victims of police brutality or their families, in the case of wrongful death, to file complaints and law suits against police officers and their agencies against the police officers, and their department.

Resources

• Arizona Constitution

• United States of America Constitution

• US Constitution Amendments

Continue reading " Police Brutality: Your Rights and Use of Excessive Force by Police " »

45 years after Miranda v. Arizona - Its impact on the US Criminal Justice System

Over the last 45 years, legal controversies and challenges have continued to plague the "Miranda Rights". Yet still it is recognized by all states in country. Following an arrest, the police must inform or warn a person of their "right to remain silent" and their right to defense counsel.

In Arizona the right to remain silent is afforded by both the United States Constitution and the Arizona Constitution. The right to remain silent is a privilege, because it enables a person to a avoid self-incrimination.

Under the Fifth Amendment of the US Constitution a person shall not be compelled to be witness against themselves in their criminal case. When you hear someone say they are "pleading the 5th", this is usually what they are referring to.

Article 2, Section 10 of the Arizona Constitution states that no person shall be compelled to testify or provide testimony, or statements against their own defense.

The right to avoid self-incrimination existed long before the landmark case. But since the US Supreme Court ruling in favor or Ernesto Miranda, in Miranda v. Arizona in 1966 they have been referred to as "Miranda Rights or "Miranda Warning". In this case, the defendant Ernesto Miranda made a confession, which led to a conviction based on his statements. Ernesto Miranda appealed the decision and prevailed in the US Supreme Court. His argument was that he had not been made aware of his right to remain silent during interrogation, or criminal defense attorney.

If a person is arrested for a DUI or crime, it is important that they invoke their rights. After an arrest and before any interrogation the police must read a suspect their Miranda Rights. Invoking one's right to remain silent helps avoiding self-incriminating statements that can later be used against them.

To invoke the right to remain silent one must verbally or in writing put police on notice that they wish to do so. If a person simply remains silent, they will be perceived by police as being uncooperative. It's also important for a suspect to answer routine questions regarding identity and residency as well as the booking process.

Criminal Rights Attorney Chandler AZ

If you have been arrested, be sure you invoke your right to remain silent regarding the charges, until your defense attorney can be present, or has given you other instructions. If your rights have been violated, it may lead to dismissal of charges, other challenges or defenses in your case. You should always consult a criminal defense attorney if you face active charges to discuss your matter, and options for defense.

Additional Resource Links:

Arizona State Legislature - AZ Constitution

Miranda Rights Q. and A.

Justia Law Summary: Miranda v. Arizona 1966

Continue reading "5th Amendment: Right to Remain Silent " »

A Simulated Explosive Device (SED) is a "Prohibited
Weapons" under Arizona Law ARS § 13-3101.
Misconduct with a Prohibited Weapon such as SED is a
Class 5 felony. Knowing and intentional assault to a person
resulting from an SED is a Class 4 felony. All felony offenses in Arizona are
serious, and carry prison time. Here is a closer look at the
definitions, laws, and sentencing resulting from these offenses.

ARS § 13-3101 (8) (a)(i)(vi)(vii)(viii)(ix): Prohibited Weapons:

Simulated explosives are considered Prohibited Weapons and include (list not all inclusive:

• Improvised explosive devices (IEDs);
• Bombs; grenades, Propellant charged rockets with charges of more than 4 ounces Explosive mine; or other poisonous or incendiary gas;
• Breakable container containing flammable liquids or gases that flash at 150 degrees
• Chemical or combination of chemicals, compounds or materials, that generate gas causing rupture or bursting of a container;
• Any combination of materials designed with the purpose of making any of the items listed above.

Prohibited Weapons Classifications and Sentencing:

ARS § 13-3102. A. (3) Misconduct with Prohibited Weapons:

Simulated explosives are considered "prohibited weapons". A person may be guilty of Prohibited Weapons charges if they manufacture, possess, transport, sell; or transfer a "prohibited weapon".

A person guilty of assault by a Prohibited Weapon is a class 4 felony
And Misconduct with a Prohibited Weapon. Under A.R.S. § 13 -702 Prison Sentencing for
Sentencing for Misconduct with a "Prohibited Weapon"

• 0.1.5 Years Minimum to 3.0 Maximum
• 0. 1 Year Minimum Mitigated to 3.75 Years Maximum Aggravated

Simulated Explosive Devices

ARS § 13-3101. A (3) Explosives Include (in part):

• Dynamite;
• Nitroglycerine
• Black powder;
• Plastic explosives;
• Materials used with the intent of making explosives

ARS § 13 - 3110. (A) (B) Misconduct involving simulated explosives:

A person may be guilty of Misconduct involving explosives if with the knowledge and intent to intimidate, threaten, harass or terrify another person if they :

• Send or place a simulated explosive device in a public or private place; or

• Display, place or send the simulated explosive in a conspicuous location for collectible, curio, or show purposes without proper labeling; clear and immediate warning, or written notice of its hazard or danger

Simulated Explosive Offenses Classification and Penalties

Misconduct involving simulated explosive devices is a class 5 felony, whether or not injury or. Harm Under A.R.S. § 13 -702 Prison Sentencing for Convictions for Misconduct with simulated explosives may result in:

• 0.75 Years Minimum to 2.0 Maximum
• 0.5 Years Minimum Mitigated to 2.5 Maximum Aggravated

Criminal Defense Attorney for Prohibited Weapons Charges Phoenix AZ

If you have been arrested or charged with possession, use, misconduct or assault with a Prohibited Weapon, you should contact a criminal defense attorney to discuss your matter. You will need to strong legal representation to protect your rights, defend your charges, and help you avoid conviction and prison terms.

Resources Links:

http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/13/03101.htm&Title=13&DocType=ARS

Continue reading "Simulated Explosives: Prohibited Weapons Laws " »

Prohibited Possession or Use of Firearm Laws Phoenix Arizona

Under Arizona Law A.R.S. § 13-3102 a person may be guilty of misconduct with weapons if they knowingly:

1. Possess a "deadly weapon" or "prohibited weapon" and is a "prohibited possessor" as defined under A.R.S. § 13-3101; and/or

2. Transfers or sells a "deadly weapon" to a prohibited possessor or user.

Prohibited Possessors of Firearms

Under A.R.S. § 13-3101. 7. "prohibited possessor" is a person who is:

• Found to be danger to self or to others; disabled or gravely disabled under order; and whose right to possess a firearm has not been restored by Law in Arizona;

• A convicted felon in Arizona or any other state; adjudicated or delinquent of a felony offense; and whose civil right to possess or firearm has not been restored;

• Serving a term of imprisonment in any correctional or detention facility.

• Serving a term of probation for a crime of domestic violence, or a felony offense, parole, community supervision, home arrest, work release or other release while on parole or probation;

• Minors as defined under A.R.S. § 13-3111;

• An undocumented or nonimmigrant alien, in the state or any reason; or who is studying in this state and maintains a foreign residence outside of the USA. Certain exceptions apply to authorized nonimmigrant aliens;

(1) Who have valid and lawful sports hunting licenses issued in the USA;
(2) In the USA to participate in competitive target shooting, sports, hunting or trade show sponsored by the state or national firearms association or
(3) Certain authorized diplomats.

Weapons Crime Penalties for prohibited possessors of firearms

• If a person is found guilty of prohibited possession of a firearm in violation of their probation, it will result in reinstatement of the original sentencing of jail or incarceration, for which they were originally convicted and sentenced; and

• A person found carrying or using a firearm, if they are a prohibited possessor, will be charged with a Class 4 Felony;

• A persons found transferring or selling deadly weapons to a prohibited possessor will be charged with a Class 6 Felony;

Misconduct Involving Weapons Defense Attorney Phoenix AZ

Weapon crimes can be very serious, especially if a crime is committed and involves the use of a gun, or other weapon. A prohibited possessor of a gun will face loss of probation, parole, reinstatement of original sentencing, new and additional prison terms, fines, fees, loss of civil rights or inability to get them restored, if you had a prior felony conviction. If you face any charges involving weapons, you should consult a criminal attorney as soon as possible. If retained, they will preserve your rights, and defend your charges. Depending on the circumstances, there may be defenses that can be used to get charges dismissed or reduced, or factors that will mitigate sentencing.

Continue reading "Gun Laws: Who are Prohibited Possessors? " »

Clemency Defined

Clemency is a mitigation of penalties; a pardon; a discharge from prison; reduction of felony prison sentencing; a reprieve or a temporary delay or suspension of sentencing. It may be granted for the Governor of Arizona or the President of the United States. The effect does not eliminate the conviction, or mean that a person is found not-guilty of a crime. Rather, it forgives, frees or reduces punishment of the crime based on specified circumstances. These may include, but not limited to:

• The mandatory prison sentence was "clearly excessively" harsh for the crime; and/or
• A person convicted has clearly turned their life around, and is no longer a threat to society; and/or
• An inmate who has displayed exemplary behavior throughout their term; and who is genuinely remorseful of their actions;
• A person with a serious illness or injury, causing them to be in "imminent danger of death" or "persistent vegetative state" ;
• When an inmate is facing the death penalty and issued a warrant for execution (mandatory hearings apply in this case.

Arizona Board of Executive Clemency

The duties of the AZ Executive Clemency Board are to review applications; arrange and conduct hearings for eligible applicants who apply. They review the application, letters, and case materials to make recommendations to the Governor about a decision. If a majority vote is favorable they will submit it to the Governor. If granted, the State will move to reduce, mitigate, or free the applicant from previous penalties ordered by the court, resulting from the criminal conviction. If the decision is a reduction in penalties or prison term only, and the applicant was convicted of a felony, this action generally does not restore the civil right they lost with a felony crime conviction.

Clemency Laws and Proceedings in Phoenix AZ

The statutory laws governing the authority, policies, procedures, hearing requests, and recommendations by the Board are defined under the following citations:

ARS § 13-603 - Authorized disposition of offenders;
ARS § 31-402 - Powers of the Clemency Board;
ARS § 31-403 - Commutation;
ARS § 31-411 - Parole and discharge;
ARS § 38-431 - Formal public meetings

• An applicant may complete and sign an application of clemency adopted by the
Arizona Board of Executive Clemency.

• The application is made to the Governor, who then transmits it to the Chairperson of the AZ Board of Clemency. Applicants determined to eligible for a hearing by the AZ Department of Corrections, will be scheduled for Phase I or Phase II hearings which apply.

• If majority of the Members of the Board vote to recommend a commutation of sentence, they will submit a letter to the Governor validating the reasons for their favorable recommendation; letters, and other case materials.

• Subsequent Applications may be submitted according to time limitations statutes that apply following the final actions by the Board.

• The final decision is made to grant or deny clemency by the Governor of the State of Arizona, which may or may not be in agreement with the Recommendations of the Board.

Criminal Defense Firm for Clemency Proceeding in Phoenix AZ

If you feel that you or someone you know would be eligible to apply for clemency, you should consult your criminal defense attorney to discuss your matter, and reasons you feel you meet the critera to apply. If retained, they will guide you and assist you with the application, and judicial proceeding process.

Continue reading "Clemency Laws and Proceedings in Arizona " »